Malawi Law Society (MLS) has asked Parliament to respect the Constitution by respecting a court order stopping the tabling of the controversial Non-Governmental Organisations (NGO) Act Amendment Bill.
The MLS position comes against the background of a declaration by First Deputy Speaker Esther Mcheka Chilenje that the court order could not be served on the National Assembly while it was in session, citing Section 5 of the National Assembly (Powers and Privileges) Act.
But in a written opinion yesterday, MLS honorary secretary Martha Kaukonde said Parliament’s immunity could be challenged where the actions by the House were likely to infringe on the rights of citizens with reference to Section 5 of the Constitution.
She said: “It is our view that if the issues in the court action or court order touch on rights enshrined in the Constitution, then Parliament cannot use the immunity clause and refuse service of the court process since doing so would result in any action taken afterwards being rendered invalid.”
Yesterday, Parliament backtracked on its earlier stance that the court injunction has no effect on proceedings of the House with assistant clerk of Parliament (protocol and public relations) Leonard Mengezi telling journalists in Lilongwe that the order is valid.
He accused the media of misrepresenting the First Deputy Speaker. He said Parliament did not rebuff the court, but stated that the said order could only be served after Parliament adjourns.
Said Mengezi: “The order is still valid, but as Parliament we can’t be served and we haven’t been served yet. Perhaps the order is out there, but not here.”
But lawyer representing the civil society organisations (CSOs), Wesley Mwafulirwa, said they served Parliament with the order and were advised to serve through the Attorney General’s Chambers.
On Monday, three CSOs—Centre for Human Rights and Rehabilitation (CHRR), Centre for the Development of People (Cedep) and Youth and Society (YAS)—obtained a court order stopping Parliament from tabling the amendment.
In a telephone interview yesterday, YAS executive director Charles Kajoloweka warned that Parliament risks being in contempt of court if it proceeded to table or debate the Bill.
Various legal minds have also condemned Parliament for disregarding a court order, saying the House was setting a bad precedent in adherence to the rule of law.
Commenting on the matter, lawyer Chrispin Sibande said: “Mcheka Chilenje has no powers to declare a court order invalid just because it is directed at Parliament. In fact, that is very dangerous because she implied that MPs can ignore court orders. A court order is valid until set aside by another court.”
He cited previous court orders served on Parliament on several issues, including Section 65 and impeachment, among others.
The Bill, among other things, seeks to remove statutory powers from Council for NGOs in Malawi (Congoma) to a new NGO Regulatory Authority and make Congoma membership voluntary, a development the CSOs describe as an attempt to kill the umbrella body.
Two weeks ago, Congoma said there was no adequate consultation on the Bill.
Currently, the Bill appears on the Order Paper—an outline of business to be tackled in the National Assembly.
But taxpayer-funded Malawi Human Rights Commission (MHRC) has called for a redrafting of the Bill to address concerns.